JUDGMENTBY: THOMAS, CJ

This is a reference under section 238 of the Land Code by the Registrar of Titles for the State of Selangor. The question for determination is whether a prohibitory order can be registered in respect of the beneficial interest of a person whose name is not on the register.

Section 265 of the Civil Procedure Code sets out at length the property which is liable to attachment, and includes therein all other saleable property, moveable or immoveable, belonging to the judgment debtor. So there can be no question that a beneficial interest in land can be attached. But in a number of sections of the Civil Procedure Code different procedure is provided for the various kinds of property to be attached. In the case of immoveable property the attachment is made by an order prohibiting the judgment debtor from transferring or charging the property in any way. This is made under section 275 of the Civil Procedure Code, and is known as a prohibitory order. A distinction is however made in sections 237 and 238 of the Civil Procedure Code between immoveable property and land which is registered. In the former case a description of the property is required to be given, sufficient to identify it, and also a specification of the judgment debtors shares or interest therein to the best of the belief of the applicant so far as he has been able to ascertain the same. In the latter case the application must be accompanied by an authenticated extract from the register, specifying the persons registered as proprietors of or as possessing a transferable interest in the land or as liable to pay revenue for such land, and the shares of the persons so registered. These requirements must be strictly followed; and section 243 of the Civil Procedure Code provides that where there is any defect the Court may either reject the application or order the defect to be remedied. When the application is admitted the Court shall order execution of the decree according to the nature of the application. It is obvious that it is not intended that the order for the execution of the decree shall be identical, whether the land has been registered or not. The distinction in the order prevents any confusion between the one and the other.

When a prohibitory order has been made it is necessary to comply with section 108 of the Land Code, 1926, which says:

"No attachment by order of the Court shall affect any land or any

registered interest in land until a copy of the prohibitory order under

section 275 of the Civil Procedure Code, 1918, has been presented and a

memorial thereof made."

The expression The Court is defined in section 2 as the Supreme Court, but by section 9 of Enactment No. 22 of 1930 the expression The Court is defined as meaning the Court of a Judge or the Court of a Magistrate of the First Class.

It must be remembered that the Land Code deals with the registration of land and that

"all land which is comprised in any grant ... is subject to the

Enactment and is not capable of being transferred ... except in

accordance with the provisions of the Enactment."

In the first place there must be a registered title, then would come registered interests, and lastly matters affecting the registered title or interests. Once a proprietor has been registered he obtains an indefeasible title subject only to a rectification of the register. That title is of course not subject to interests which have not been registered. And if it is not subject to an interest which has not been registered, then it cannot be subject to any order or act affecting an interest which has not been registered. If it were otherwise, then the whole purpose of the Enactment would be defeated, and a proprietor might at any time be prevented from dealing with his land or interest in land owing to the existence of an order or act relating to an interest, real or imaginary, which had never been registered. Before such order or act affe

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